OMB pressed to clarify rules on job competition appeals

An industry group on Friday urged the Office of Management and Budget to clarify its policy on who can represent federal employees in agency-level appeals of outsourcing decisions.

May 2003 revisions to OMB's Circular A-76, which sets rules for running public-private job competitions, are too vague about the agency-level appeals process, said Stan Soloway, president of the Professional Services Council, an Arlington, Va.-based contractors association, in a Feb. 20 letter to OMB Deputy Director for Management Clay Johnson. This gap in the rules has created confusion and needs immediate clarification, Soloway said.

The reworked Circular A-76 designates two key officials, the formal representative of in-house employees known as the "agency tender official" and an official elected by the majority of employees on an in-house team, as "directly interested parties" for agency-level job competition challenges. But the circular does not explain how agencies should determine who qualifies as an individual elected by an in-house team, Soloway said.

This question surfaced at the Forest Service, where California mechanics are challenging an early January decision to outsource their work. Both the National Federation of Federal Employees, the union representing fleet maintenance workers with jobs on the line, and William Van Auken, a mechanic selected as an "agent" of the in-house team, filed appeals, leaving the Forest Service to decide which case to hear.

These appeals mark the first challenges of job competitions conducted under OMB's May 2003 rules. The Forest Service last week dismissed NFFE's appeal, an agency official said Monday. The official asked to remain anonymous.

Even though the fleet maintenance workers belong to NFFE, the union does not automatically qualify as the "agent" elected to represent them in A-76 appeals, the Forest Service official explained. Instead, the agency will hear the appeal originally filed by Van Auken, the official said. Van Auken had gathered roughly 40 signatures designating him as the employee-team agent, the official noted.

Van Auken and his co-workers are attempting to hand their agency-level appeal over to Dan Duefrene, head of their NFFE local, so that they will have the union's legal resources at their disposal. Duefrene would classify himself as an individual elected as an agent of the in-house team, rather than as a union representative. About 37 mechanics, including Van Auken, have signed petitions supporting the switch, Duefrene said.

In general, the Forest Service has decided that the revised OMB circular allows A-76 appeals from individuals able to show that the in-house team elected them as an "agent." These individuals would have to present petition forms or other evidence demonstrating that in-house team members explicitly selected them to file an appeal, the agency official explained.

The Forest Service's approach to tackling appeals under the new circular seems "logical," Soloway said. But to avoid future confusion and maintain consistency across the government, OMB should publish guidelines. "Some clear, accountable and transparent means by which the affected workforce selects one individual as its representative is essential to ensure the integrity of the A-76 process and to avoid unnecessary delays, legal challenges and confusion," Soloway wrote in his letter to OMB.

When reworking Circular A-76, OMB intentionally gave agencies some flexibility with regard to the appeals process, an administration official said Monday. But OMB will consider Soloway's recommendation, he said. To date the administration has no plans to issue a policy clarification.

Guidelines from the administration would have helped the agency out with the fleet maintenance appeals, the Forest Service official said. "We need to be very clear on what's going on with all this," he said. "It always helps when things are black and white."